Media regulation: what should be regulated, and how?

Ryan Giggs
Big enough, ugly enough (Photo credit: Wikipedia)

If we discount the outriders of the press regulation debate – those who believe everything is fine and no regulation is needed; those who want tabloid editors subjected to tortures that would make Torquemada blanch – a polarity emerges. Most people believe the phone hacking scandal and revelations in and around Leveson prove things have gone wrong and that some regulatory remedy is needed. Where they then divide is on whether regulation should be statutory. Those who oppose statutory regulation equate it with state and political control. Those who support it point to the producer capture of voluntary schemes.

These perspectives are misleading. It is possible to devise a statutory regulator that is independent of ministers and minimally invasive towards regulated entities. It is entirely possible to devise a voluntary system so onerous that, notwithstanding incentives for participation, numerous bodies refuse to participate. The debate is a red herring. Far more important is determining what a new body should regulate, how it should regulate, and what powers and sanctions it would deploy.

To address the what question, let’s examine headline concerns about press conduct.

First: hacking, corruption, and excessive power/political access.

None of these should concern any new regulator. Phone hacking is a criminal offence and should be a matter for the criminal justice system, notwithstanding police incompetence hitherto. So are allegations of suborning public officials. And power is a function of market share. This should be addressed by the imposition of cross-media ownership limits, enforced by competition authorities.

Second: journalistic standards and the rights of individuals and organisations to fair coverage.

A regulator self-evidently must regulate against some standard – laws, rules, or a codified set of principles. To be at once consistent with a free society and effective, the standard must not be tyrannous, unreasonable and it must be enforceable.

I don’t like boxing. I hate aggressive dogs. And I don’t like tabloid newspapers. But I am wary of advocating regulation against things because I don’t like them. Some recent well intentioned attempts to delineate journalistic standards smack of regulating for the press their deviser likes and against the one they don’t like. But you can’t regulate for taste.

So let’s be clear. Regulating to commit journalists to uphold the slippery philosophical concept of “truth” is difficult. Partisanship and tendentiousness, however blinkered and unfair, should be entirely off regulatory limits. So, as concepts in their own right, should scurrility, mean spiritedness, vulgarity, saltiness, bad writing, sloppiness, prurience, double standards, inconsistency or stupidity. Without these vital ingredients, today’s tabloid press would be impossible. But some of these are also essential ingredients in humour, parody, satire, and lively political debate. However superficially welcome attacks on shoddy journalism might be, we should be wary of codes that would make it hard for Private Eye to function. Standards of this sort might more properly addressed as a question of culture. Better training for journalists and examination of the strategies media outlets deploy in their use and abuse of language in school English or Citizenship classes would be more effective long-term strategies for tackling these issues of information integrity and quality.

Another issue bound up with culture and education is the appetite for and coverage of celebrity gossip. Early on Leveson was dominated by celebrity evidence. Submissions about harassment, bribes, data theft and so forth were instructive and should be matters for criminal investigation. The concern one or two celebs showed to protect their personal lives and reputations were perhaps less edifying. It would be wrong in my view for Leveson to elaborate a new privacy principle to be enforced by a regulator. For those who can afford to issue proceedings, the balance the courts already have to strike between human rights and public interest seems to me to obviate the need to create a new and potentially dangerous demarcation, which benefits randy old men but possibly hinders Woodwards and Bernsteins. Secondly, as the Ryan Giggs case shows, the privacy horse has bolted. Even if we wished to suppress legally obtained information about an affair, for example, the issue is all over Twitter before you can say “hashtag”. Thirdly, in respect of reputations, the libel laws in this country are already some of the most stringent in the world.

So. Have I ruled everything out of scope for a new regulator?

Far from it.

Consider the following fictitious headlines:

  • Eric Pickles is a Fat Bastard Say 62% of Readers
  • Labour Party Position on Media Regulation “Cretinous”
  • McDonald’s Greed “Bordering on Evil”

Now consider an unflattering tabloid photo spread obtained by doorstepping Katie Price.

My view is that, as the saying goes, these people and organisations are big and ugly enough to look after themselves. The Pickles headline is unfortunate, but the target is robust, amply demonstrated by his standing and power. Political parties must withstand partisan attacks. However it may pain McDonalds, some people do regard it as evil. And Katie Price’s livelihood depends on symbiosis with the media.

Now for each of the four examples substitute in sequence: the name of an obscure private citizen, a small charity, a corner shop, and a single mother on a council estate.

The power dynamics are utterly changed. We are no longer in the rarefied world of celebrity annoyances. Rather we are reminded of Christopher Jeffries and countless private citizens whose reputations have been besmirched on flimsy suppositions, in pursuit of sensational headlines. Perusal of tabloids’ outer pages unveils the lives of the Beckhams. The inner pages are full of private individuals presented in grotesque light, sometimes with justification, sometimes to the pointless destruction of lives.

I advised against regulating scurrility, sloppy writing, bad journalism per se. That is because these things can exist without doing significant injury. But harm and the vulnerability of citizens should in my view concern a regulator. Then the quality of the journalism – its public interest defensibility, accuracy etc – becomes material to assessing whether someone has been needlessly hurt.

Vulnerable citizens harmed in this way, traduced short of libel or unable to afford to go to court, currently lack support and advocacy. The new regulator should be theirs.

To avoid producer capture and the unpredictable dynamics of voluntarism, in my view the body should be statutory. This is absolutely not synonymous with state control. Many statutory regulators are independent of ministers, sometimes frustrating and annoying them. But address the regulatory gap I’ve identified and nothing else, and to guarantee wider press freedom, the new body must be narrowly focused, must not licence, routinely inspect, define business models, or elaborate prohibitive rules, such as a “backdoor” privacy law. Many regulators do not licence, and instead enjoy a sort of “presumed competence” in markets where they oversee certain features but to which they do not control entry. Not all regulators inspect or continually create binding rules. So the model has precedents. Furthermore, the regulator should principally be reactive, investigating complaints.

My theoretical model resembles a body like the quasi-regulators such as various Ombudsmen. Funded by government, they are not subject to political control. Indeed, the Local Government Ombudsman regularly finds against politicians and administrations of all political shades. They do not inspect, but respond to complaints.

A publicly funded Press Ombudsman could develop and promulgate a narrow but important principle: that the press has a responsibility not to destroy the lives of private individuals in the pursuit of profit on the basis of mere supposition, innuendo, and with wanton disregard for a meaningful public interest. It would then receive complaints.

Established by statute, it could be subject to guaranteed long-term funding and non-departmental (ie not overseen by a minister). Senior officials could be Crown appointments, but not selected by the Prime Minister, chosen instead by an independent recruitment panel drawn from a range of stakeholders, including the public. And the Ombudsman could avoid becoming a rich celebrity’s privacy shield by concerning itself with the comparative “vulnerability” of claimants. From time to time this would of course include the dependents or associates of celebrities, who, as the case of Charlotte Church’s mother shows, can be subject to terrible harassment, and even celebrities themselves. But by having regard to a person’s circumstances, means and whether the person’s standing and power are factors in the coverage – Eric Pickles rotundity as a matter of partisan abuse or satire, versus the standing of a DLA claimant with elephantiasis – the Ombudsman would focus principally on the vulnerable.

And the penalties it might impose. Restorative justice might work for some cases. Being required to print full front page apologies to individuals could cause editors to interest themselves in the factuality of their coverage. But the public will want real teeth. So the Ombudsman should be able to impose fines, some very steep, perhaps to be paid in whole or part to the injured parties.

Regulators support cultural change when they are narrowly bounded, but powerful within their range. A Press Ombudsman would be mostly silent. But it would carry a big stick. I think this is a remedy likely to have more lasting impact than either imposing onerous and prescriptive codes, statutory or otherwise, or doing nothing.

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